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Hamel v. Simmons

United States District Court, D. Massachusetts

November 13, 2018

GORDON RICHARD HAMEL, Plaintiff,
v.
JENNIFER A. SIMMONS, et al. Defendants.

          ORDER

          David H. Hennessy UNITED STATES MAGISTRATE JUDGE

         This case is before the Court on Defendants' motion to dismiss for lack of jurisdiction and Plaintiff's motions for judgment on the pleadings and for a case management conference. (Docket ## 18, 22, 24). The parties have consented to my jurisdiction. (Docket # 21).

         I. BACKGROUND

         Although the allegations in the complaint do not clearly set out any particular cause of action, Hamel's claims appear to arise from the rejection of his application for employment with the Department of the Army. (Docket # 1). In his complaint, Hamel lays out a timeline of events as follows. (Id.). Hamel alleges that he is the founder and president of “American Voice for freedom [sic], a libertarian 501(c)(4), ” that he is a resident of Philadelphia, Pennsylvania, and that he is or was an employee of a Federal Protective Service contractor.[1] (Id. at ¶¶ 1, 2). Hamel reports that he applied for vacancy identification no. 1897205 with the United States Department of the Army (“DOA”) on January 23, 2017. (Id. at ¶ 3). According to a posting by DOA, the position was for a security guard at Fort Devens Army Installation. (See docket # 19-1 at pp. 1-2). The job paid up to $45, 995. (Id.). The job was subject to a number of conditions which an applicant must meet including “background checks and security clearance, ” proficiency with assigned firearms, passage of medical tests, and possession of a valid driver's license.[2] (Id. at pp.3-6).

         On July 24, 2017, Hamel contends that he filed a complaint against his employer with the Department of Homeland Security, Office of the Inspector General (“Whistleblower Complaint”).[3] (Id. at ¶ 4.).

         Hamel states that on July 25, 2017 he was rated as qualified for the position with DOA and his application was referred for consideration. (Id. at ¶ 5). Hamel claims that he was tentatively selected for the DOA position on August 7, 2017, and that he accepted. (Id. at ¶ 7). On August 11, 2017, Hamel submitted copies to Human Resources at the Civilian Personnel Advisory Center of his Pennsylvania driver's license, U.S. passport, Pennsylvania license to carry firearms, and Pennsylvania Act 235 lethal weapons training certification card. (Id. at ¶ 8). Hamel contends that on October 31, 2017, Defendant Jennifer Simmons, the Director of the Civilian Personnel Advisory Center, withdrew the tentative job offer, explaining that it was withdrawn because Hamel's driver's license was suspended. (Id. at ¶ 9).

         In his complaint, Hamel alleges that on November 7, 2017, the Director of the Bureau of Driver Licensing at the Pennsylvania Department of Transportation certified that there were no violations or departmental actions respecting his driver's license. (Id. at ¶ 10). On November 8, 2017, Hamel informed a human resources specialist at the Civilian Personnel Advisory Center that he would provide her with a certified copy of his driving record to prove that his license was not suspended. (Id. at ¶ 11). According to Hamel, the human resources specialist stated that she would consult with the Director of Emergency Services and get back to him. (Id.). Hamel alleges that she did not call him back. (Id.). On January 16, 2018, Hamel claims that the specialist informed him that a U.S. Army Garrison Devens Police Sergeant performed the license status query. (Id. at ¶ 12). Hamel complains that because DOA has failed to initiate his employment, he has suffered lost wages, lost compensation, humiliation, emotional distress, and loss of standing in his community. (Id. at ¶ 14).

         Hamel filed his complaint on January 24, 2018 against Jennifer Simmons; Mark Esper, the Secretary of the Army; and James Mattis, Secretary of Defense. (Docket # 1). He filed for and was granted leave to proceed in forma pauperis. (Docket ## 3, 5). Defendants jointly moved the court to enlarge the time to file an answer on April 17, 2018. (Docket # 9). The Court denied Defendants' motion to enlarge with leave to refile upon compliance with Local Rule 7.1(a)(2) or citation to authority excusing Defendants from compliance with Local Rule 7.1(a)(2). (Docket # 14). Defendants renewed their motion on May 11, 2018, including a Local Rule 7.1 Certification. (Docket # 15). The Court granted the motion that same day. (Docket # 16). On May 15, 2018, Defendants moved the Court to dismiss for lack of jurisdiction. (Docket #18). Hamel opposed the motion to dismiss on May 21, 2018. (Docket # 20). On July 20, 2018, Hamel moved the Court to set a case management conference. (Docket # 22). On September 4, 2018, Hamel filed a motion for judgment on the pleadings. (Docket # 24). Defendants filed an opposition to Hamel's motion for judgment on the pleadings on September 18, 2018 and a reply to Hamel's response to the motion to dismiss on September 27, 2018. (Docket ## 25, 26).

         II. Motion to Dismiss

         A. Standard of Review

         Jurisdiction concerns a court's authority to entertain and act upon a controversy before it. Rosario v. United States, 538 F.Supp.2d 480, 486 (D. P.R. 2008). “Federal courts are courts of limited jurisdiction, and therefore must be certain that they have explicit authority to decide a case.” Bonas v. Town of N. Smithfield, 265 F.3d 69, 73 (1st Cir. 2001); see U.S. Const. Art. III. This Court has “a responsibility to police the border of federal jurisdiction.” Spielman v. Genzyme Corp., 251 F.3d 1, 4 (1st Cir. 2001). Because jurisdiction concerns a court's power to hear a case, a challenge to subject-matter jurisdiction may be raised at any time. Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016); Rosario, 538 F.Supp.2d at 486; Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906 (2004); United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781 (2002).

         In reviewing a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, the Court must “construe the [c]omplaint liberally and treat all well-pleaded facts as true, according the plaintiff the benefit of all reasonable inferences.” Hajdusek v. United States, 895 F.3d 146, 148, (1st Cir. 2018) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). Nonetheless, “the party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Jonson v. FDIC, 877 F.3d 52, 56 (1st Cir. 2017) (citing Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). Therefore, “an order granting a motion to dismiss at the pleading stage is appropriate only when the facts adumbrated in the plaintiff's complaint, taken at face value, fail to bring the case within the court's subject-matter jurisdiction.” Gordo-González v. United States, 873 F.3d 32, 35 (1st Cir. 2017).

         B. Analysis

         Defendants apparently read the complaint to assert a claim for whistleblower protection against the DOA for rescinding Hamel's offer of employment. Defendants argue that because Hamel did not pursue his administrative remedies before the Office of Special Counsel (“OSC”), the Court does not have jurisdiction to hear any whistleblower claims asserted in Hamel's complaint. The Court agrees that in as much as Hamel is asserting protection as a whistleblower, the Court does not have jurisdiction to hear the case.

         However, in Hamel's response to Defendant's motion to dismiss, Hamel expressly disclaims that his complaint seeks any relief under the Whistleblower Protection Act (“WPA”); indeed, Section 1 of his opposition is entitled, “Plaintiff did not file under the Whistleblower Protection Act.” Rather, Hamel claims that his complaint asserts counts of “malicious defamation of character, interference with contractual relations, breach of contract, and violation of due process.” (Docket # 20). In relevant part, Hamel's complaint alleges that: “[b]ecause of defendant's action, I have suffered lost ...


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